Public Order Offences Flashcards
PUBLIC ORDER OFFENCES
- Affray - Section 3 Public Order Act 1986;
- Fear Of Provocation Of Violence - Section 4 Public Order Act 1986;
- Intentional Harassment, Alarm or Distress - Section 4A Public Order Act 1986;
- Harassment, Alarm or Distress - Section 5 Public Order Act 1986; and
- Intentionally Or Recklessly Causing A Public Nuisance - Section 78 Police Crime Sentencing & Courts Act 2022.
Learning Points
Applicable To All 3
Offences Of Riot,
Violent Disorder &
Affray
Sections 1-3 Public Order Act 1986
The Location Of The
Riot, Violent Disorder
Or Affray?
Section 1(5), 2(4) & 3(5) Public Order Act 1986
All 3 offences can take place anywhere
i.e. in either:
*A public place; or
*A private place.
The Person Of
Reasonable Firmness
Present At The Scene
Section 1(4), 2(3) & 3(4) Public Order Act 1986
For all 3 offences - no person of
reasonable firmness either:
*Need actually be; or
*Be likely to be
.present at the scene.
The Operation Of The
“Hypothetical
Bystander Of
Reasonable Firmness
Present At The Scene”
Test
R v Sanchez (1996) 160 JP 321
It is necessary to prove that
the defendant’s conduct
would have caused
a hypothetical bystander,
if they were present at the scene,
to fear for their personal safety.
For all 3 offences
the hypothetical bystander
of reasonable firmness
will not actually
need to be at the scene.
The question is
had they been there
-would they
have feared
for their personal safety?
Can A Police Officer Give
Evidence That A Person Of
Reasonable Firmness,
Would, If They Had Been
Present At The Scene,
Have Feared For Their
Personal Safety?
Yes
The officer must put forward hard facts to
justify this opinion and the court must then
apply an objective test to that evidence as to
whether a person of reasonable firmness
would have feared for their personal safety
Effect Of A Person Of A
Sensitive Disposition,
Who Was Actually
Present At The Scene,
Fearing For Their
Personal Safety?
The accused will only be guilty
if the hypothetical bystander
of reasonable firmness
would also have
feared for their personal safety
if they were placed in the same situation.
Persons Who Can
“Handle Themselves”
Who Are Present At
The Scene Who Do Not
Fear For Their Personal
Safety
It is irrelevant whether the
person who can “handle themselves”
feared for their personal safety
-what matters is whether the
hypothetical bystander
of reasonable firmness
would also have feared for their personal
safety if they were placed in the same
situation.
Definition Of
Unlawful Violence
Section 8 Public Order Act 1986
Any violent conduct directed towards either:
Target 1 — Persons
This applies to all 3 offences
of:
* Riot;
* Violent disorder; and
* Affray.
Target 2 — Property
This only applies to the
offences of:
* Riot; and
* Violent disorder.
NB — does not apply to affray
The Broad Scope Of
The Definition Of
Unlawful Violence
The definition is not restricted to conduct that
either:
*Causes; or
* Is intended to cause
either:
* Injury; or
*Damage…
.but includes any other violent conduct
(for example — throwing at or towards
a person a missile
of a kind capable of causing injury
which does not hit or falls short).
Defences Applicable To
All 3 Offences Of Riot,
Violent Disorder &
Affray
Section 6(5) Public Order Act 1986
Defences
2 specific defences
general defences
Specific Defence 1
Non self-induced
Intoxication.
i.e. the intoxicant was “slipped in”
Specific Defence 2
Intoxication
caused solely
by the taking or administration
of a substance in the course of
medical treatment
i.e. the intoxicant was “medicine”
Affray
Section 3(1) Public Order Act 1986
A person is guilty of affray if they either:
*Use; or
*Threaten (to use)
…unlawful violence towards another
person (NB — not property). ..
.and their conduct
(or if 2 or more persons use or threaten
violence — their conduct taken together)
is such that it would cause
a person of reasonable firmness
present at the scene to
fear for their personal safety.
The Number Of
Persons Present?
Minimum?
There must be a minimum
of 1 person present
at the scene.
There are really 3 “parties”
involved in an affray.
Party 1 - Maker
The individual
making threats.
Party 2 - Subject
The person subjected
to the threats.
Party 3 - Hypothetical
Reasonable Person
The hypothetical person
of reasonable firmness
who does not need to be physically present
-as long as evidence is available to prove
that such a person would be affected.
For an affray,
the threat of violence
needs to be capable of affecting others.
The primary objective of the offence is to
protect the general public
- not the participants.
If There Is More Than 1
Person Present
- Need They Have A
Common Purpose?
No
— a common purpose is not necessary.
What Action Must Be
Taken By The
Accused?
The accused must either:
*Use violence; or
*Threaten violence.
The Nature Of Any
Threat Made?
Section 3(3) Public Order Act 1986
A threat cannot be made by words
alone.
Any threatening words must be
accompanied by actions.
Who Must The Use
Or Threat Of
Violence Be Directed
Towards?
The use or threat of violence can
only be directed to a person(s)
present at the scene.
NB - not towards property.
1 v DPP (2001) UKHL 10
The Hypothetical
Person Of Reasonable
Firmness Present At
The Scene
It is necessary to prove that the defendant’s
conduct would have caused a hypothetical
person of reasonable firmness present at
the scene to fear for their personal safety.
R v Sanchez [1996] 160 JP 321
What If There Is No
Possibility Of A
Hypothetical Person Of
Reasonable Firmness
Present Actually Being
Able To Be At The
Scene?
If there is no possibility
of a hypothetical person
of reasonable firmness
being present at the scene
— then no offence is committed.
R (On The Application Of Leeson v DPP [2010] EWHC 994
(Admin)
The Mens Rea For
The Offence?
The accused must either:
*Intend to use or threaten
violence; or
*Be aware that their conduct may
be violent.
Who Is Guilty?
Only the person
who either
uses violence or
threatens to use violence
against another person
is guilty.
Checklist
Affray
Step 1
Did the accused either
use violence or
threaten to use violence
towards a
person present at the scene?
step 2
Did the person(s) who used violence or
threatened violence either:
*Intend to do so; or
*Were they aware that their actions may be
violent?
Step 3
If a hypothetical bystander of reasonable firmness
had been present at the scene — would their conduct
(or if 2 or more persons used or threatened violence —
their conduct taken together) have caused the person
of reasonable firmness to fear for their personal
safety?
* If no — no offence.
* If yes — guilty of affray.
Fear Or Provocation
Of Violence
Section 4 Public Order Act 1986
Points To Prove
3 steps
Step 1
The defendant carried out
either of
2 prohibited actions.
Step 2
The defendant
has the requisite
state of mind
in respect of either of the
2 prohibited actions.
Step 3
Either:
*The defendant intended to cause either
consequence 1 or 2; or
*That either consequence 3 or 4 was likely.
Step 1
The 2 prohibited actions
Prohibited Action 1
The defendant uses
towards another person
either:
* Words; or
* Behaviour…
.that are either:
* Threatening;
* Abusive; or
* Insulting.
Prohibited Action 2
The defendant either:
* Distributes; or
* Displays;
..to another person…
-any:
* Writing;
* Sign; or
* Visible representation,
which is either:
* Threatening;
* Abusive; or
* Insulting.
Definition Of
Threatening, Abusive
& Insulting
Threatening
Includes verbal
and physical threats,
and violent conduct.
Abusive
Using degrading
or reviling
language.
Insulting
Scorning
-especially if
insolent or contemptuous.
Step 2
The defendant’s state of
mind in respect of the
prohibited action
The defendant must either:
*Intend; or
*Is aware…
.that either:
* Their words;
* Their behaviour;
* The writing;
* The sign; or
* The visual representation
are / may be either:
* Threatening;
*Abusive; or
* Insulting.
step 3
The intended or likely
consequence
Intended Consequence 1
The defendant intended
to cause the person to believe
that immediate unlawful violence
will be used against
them or anybody else
by the
defendant or anybody else.
There is no need to prove
that the person
actually believed
that violence will be used.
Swanson v DPP [1997] 161 JP 203
Intended Consequence 2
The defendant intended
to provoke
the immediate use of unlawful violence
by that person
or anybody else.
Likely Consequence 3
The person whom
the behaviour was directed towards
is likely to believe
that immediate unlawful violence
will be used against
them or anybody else
by the
defendant or anybody else.
Likely Consequence 4
It is likely that the
immediate use of unlawful violence
will be provoked.
Immediate Unlawful
Violence
- Does The Unlawful
Violence Need To Be
Instantaneous?
Immediate Unlawful
Violence
- Does The Unlawful
Violence Need To Be
Instantaneous?
Location Of The
Offence
Section 4(2) Public Order Act 1986
The offence can be committed either:
*In public; or
*In private.
The Dwelling
Section 4(2) Public Order Act 1986
No offence is committed where either:
* The words or behaviour are used; or
* The writing, sign or other visible representation is
distributed or displayed
by a person inside a dwelling — and the other person is
also either:
* Inside that same dwelling; or
* Inside another dwelling.
The Dwelling
Defence In Simple
Terms
No offence is committed - if both parties are
in either:
*The same dwelling; or
* Different dwellings.
The Definition Of A
Dwelling?
Section 8 Public Order Act 1986
Any:
* Structure (Tent, caravan, vehicle, vessel or other
temporary movable structure); or
* Part of a structure
occupied as either:
*A person’s home; or
* Other living accommodation…
.whether the occupation is either:
* Separate; or
* Shared with others
but does not include any part not so occupied.
The Definition Of A
Dwelling Put Simply
A dwelling
is any structure
or part of a structure
that a person
lives in.
When Will A Person
Not Be In A
Dwelling?
A person will not be in a dwelling if they are not in
a part of the structure that is occupied — for
example:
* Back gardens; or
* Communal landings.
DPP v Distill (2017] EWHC 2244 (Admin)
Intentional
Harassment, Alarm
Or Distress
Section 4A Public Order Act 1986
State Of Mind?
A person commits an offence - if with
intent to cause either:
* Harassment
* Alarm
* Distress
Prohibited Action?
. they either:
* Use threatening, abusive or insulting words or
behaviour;
* Use disorderly behaviour; or
* Display any writing, sign or visible representation
which IS threatening, abusive or insulting…
Result?
…thereby causing either:
* That person; or
* Another person
.the result of either:
* Harassment
* Alarm
* Distress
Differences Between
Section 4
& Section 4A?
Difference 1
Section 4A requires that:
* Not only must the offender have the requisite intent for
their actions to cause the consequence of H.A.D; and
* The offender’s actions must also bring about the result
of H.A.D.
Difference 2
There are more defences available:
*Dwelling defence; and
*2 further defences.
Can A Police Officer Be
Caused The Result Of
Harassment Alarm Or
Distress?
Yes
but the conduct which
caused H.A.D
must go beyond that which
they would encounter
in their ordinary duties.
DPP v Orum (1989) 1 WLR 88
Location Of The
Section 4A Offence?
Section 4(A)(2) Public Order Act 1986
The offence can be committed either:
*In public; or
*In private.
Posting inflammatory letters
through letter boxes
is not an offence
under this section.
Chappell v DPP (1989) 89 Cr App R 82
3 Defences
— To be proven by the defence on the
balance of probabilities
Defence 1
The dwelling defence
No offence is committed where either:
* The words or behaviour are used; or
* The writing, sign or other visible representation is
displayed
.by a person inside a dwelling — and the other person who
is harassed, alarmed or distressed is also either:
* Inside that same dwelling; or
* Inside another dwelling.
Defence 2
Reasonable conduct
The defendant’s
conduct
was reasonable.
Defence 3
Belief that nobody could
see or hear
The defendant was inside a dwelling
They had no reason to believe that the
words or behaviour used,
or the writing sign or other visual
representation displayed
— would be heard or seen
by a person outside
that or any other dwelling.
Checklist
Section 4A Public Order Act 1986
Step 1
Did the defendant
have the intent
to cause
Step 2
Did the defendant
carry out one
of the
prohibited actions?
Step 3
Did the prohibited action
cause the result of H.A.D
to that or another person?
* If no — no offence
*If yes — guilty unless a defence in step 4
proven.
Step 4
Can the defence prove on the balance of
probability any of the 3 defences?
If no — offence committed.
If yes — no offence.
Harassment, Alarm
Or Distress
Section 5 Public Order Act 1986
Prohibited Action?
It is an offence to either:
* Use threatening or abusive words or behaviour;
* Use disorderly behaviour; or
* Display any writing, sign or visible representation
which is threatening or abusive…
Where?
.within the hearing or sight of a person likely to be
caused either:
* Harassment
* Alarm
* Distress
The Defendant’s
State Of Mind In
Respect Of The
Prohibited Action?
The defendant must either:
*Intend; or
*Be aware…
.that either:
*Their words;
*Their behaviour;
*The writing;
*The sign; or
*The visual representation…
are / may be either:
*Threatening; or
*Abusive…
.or they either:
*Intend their behaviour to be
disorderly; or
*Are aware that their behaviour
may be disorderly.
Location Of The
Offence?
Section 5(2) Public Order Act 1986
The offence can be committed either:
*In public; or
*In private.
Example Of
Threatening Or
Abusive Words
Aggressively shouting
“You’re f* * *ing Islam”
to a Sikh police officer
R (on the Application of DPP) v Humphrey [2005] EWHC 822
(Admin)
Example Of
Threatening Or Abusive
Writing, Sign Or Other
Visual Representation
A BNP poster
showing a photograph of black
men accompanied by the caption
“Illegal immigrant murder scum”.
Kendal/ v DPP [20081 EWHC 1848 (Admin)
Using Disorderly
Behaviour
Meaning Of
Disorderly
Behaviour?
Not defined
— the ordinary meaning
applies.
Does The Disorderly
Behaviour Need To
Be Threatening Or
Abusive In Nature?
No
Does The Person To
Whom Disorderly
Behaviour Is Directed
Need To Feel
Threatened Or Abused?
No
The Prohibited Action
Must Take Place Within
The Hearing Or Sight
Of A Person Likely To
Be Caused
Harassment, Alarm Or
Distress
There was somebody present
who could either
see or hear
what the defendant was doing.
Taylor v DPP [2006] EWHC 1202 (Admin)
Holloway v DPP (2004) EWHC 2621
Can A Police Officer
On Duty Be The
Victim Of This
Offence?
yes
— but police officers are
expected to show
a greater degree of resilience,
so the threshold is high.
4 Defences
— To be proven by the defence on the
balance of probabilities
Defence 1
The dwelling defence
No offence is committed where either:
* The words or behaviour are used; or
* The writing, sign or other visible representation is
displayed
.by a person inside a dwelling — and the other person is
also either:
* Inside that same dwelling; or
* Inside another dwelling.
Defence 2
Reasonable conduct
The defendant’s
conduct
was reasonable.
Defence 3
Belief that nobody could
see or hear
The defendant was inside a dwelling
They had no reason to believe that the
words or behaviour used,
or the writing sign or other visual
representation displayed
— would be heard or seen
by a person outside
that or any other dwelling.
Defence 4
Belief that nobody in sight or hearing
was likely to be caused H.A.D.
The defendant had no reason to believe that there
was any person — within:
* Hearing; or
* Sight
.who was likely to be caused either:
* Harassment
. Alarm
* Distress
Checklist
Section 5 Public Order Act 1986
Step 1
Did the defendant
carry out one
of the
prohibited actions?
step 2
Did the prohibited action
take place within the
hearing or sight
of a person
likely to be caused H.A.D?
Step 3
Did the defendant have the requisite
intent or awareness
as to the consequences of carrying out
the prohibited action?
* If no — no offence
* If yes — guilty unless a defence in step 4 proven.
Step 4
Can the defence prove on the balance of
probability any of the 4 defences?
If no — offence committed.
If yes — no offence.
Intentionally Or
Recklessly Causing A
Public Nuisance
Section 78
Police, Crime, Sentencing & Courts Act 2022
A person commits an offence - if they either:
* Do an act; or
* Omit to do an act
..that they are required to do by any enactment or rule
of law
which either:
* Creates a risk of, or causes, serious harm to the
public or a section of the public; or
* Obstructs the public or a section of the public in the
exercise or enjoyment of a right that may be
exercised or enjoyed by the public at large.
.and the person either:
* Intends; or
* Is reckless
. that either:
Their act; or
* Their omission
.will have either consequence.
Definition Of Serious
Harm?
Section 78(2)
Police, Crime, Sentencing & Courts Act 2022
3 categories
Category 1
Death,
personal injury,
or
disease.
Category 2
Loss of,
or damage to
property.
Category 3
Serious distress,
serious annoyance,
serious inconvenience,
or
serious loss of amenity.
